25 febbraio 2008

It is widely know that the US Government’s “war on terror” justification has effectively allowed US enforcement agencies to routinely tap telephone conversations without any effective supervision. It is also presumed that the same agencies might monitor the web and internet based data and communications. The legitimacy of such conduct and the breach of privacy rights have been questioned in US Courts, but to date there is no clear guidance and phenomenon seems to continue unaltered. But in Europe may be the things are going to be different.

The German Federal Constitutional Court has said in a precedent-setting decision that data stored or exchanged on a personal computer is effectively covered under principles of the constitution that enshrine the right to personal privacy. Therefore, un-authorized government surveillance of personal computers violates the individual right to privacy. While the decision directly addressed a state law that had widely allowed authorities to monitor suspects' personal computer use, it also set out the ground rules for a proposed federal law governing secret services' ability to use virus-like software to monitor suspected terrorists' online activity.

The presiding judge Hans-Juergen Papier held that “given the gravity of the intrusion, the secret infiltration of an IT system in such a way that use of the system and its data can be searched can only be constitutionally allowed if clear evidence of a concrete threat to a prominent object of legal protection exists," As a result of this decisions authorities would be allowed to spy on privately held computers using virus software in exceptional cases, but any such action must have the approval of a judge. It seems a reasonable decision, even though given the ubiquitous nature of the web, one wonders if it really matters that Germany has self imposed a duty which other EU countries have not. Perhaps, after Germany other countries will follow.